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Ammu (Self)     28 February 2014

Dispute with lessee

Hi  Honourable Layers,

I Ammu Mohan who is a physically challenged and D/O an widow mother. I am undergoing an stressful life with the court case with regards to Lessee of our Shop at CMH Road.

 

The agreement between the Lessee and the Lessor was done 20 years back after which the shopkeeper has not come forward to do new agreement as we had requested him to vacate the shop. As the sad day occured we lost our dad by leaving beyond a shop to us. In which we are dependent on it. As we planned to take up the shop and start up some sort of business and insisted the lessee to vacate the shop with consolidated notice period. But, he refused to do so and stopped to pay the rent as the reason we took him to the court of Law. So, to face the court we consulted a lawyer. But nothing is happening in favour of us. Our lawyer is not taking any initiative in our case. He is just pulling out of money from us and insisting us to sell the shop. We are helpless and don’t know what need to be done. As my mom is aged and Sick I am really concerned with her health too.

 

Seeking your adive in this matter.

 

Thank you



Learning

 14 Replies

Shashikant V. Patil (Lawyer)     28 February 2014

Dear Ammu,

Your case is so strong & sympathatic that, the lessee has to vacate your deceased father's shop.  You change this Advocate , who is only greedy  and not taking the  matter seriously.  Your ground for this 1)Your livelihood is depend on this shop.2) You are physically challenged 3) your mother is aged and sick.  You better change this Advocate immediately who can not give you a fruitful result.

Biswanath Roy (Advocate)     28 February 2014

After expiry of the lease period and in absence of its continuity for a further lease the the occupier shall be treated as monthly tenant who can be evicted by the provisions of Tenancy Act.  You appoint a new competent lawyer.

1 Like

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank)     01 March 2014

DEAR MADAM AMMU

                                     SINCE YOU HAVE LEFT HIM ALL THESE YEARS WITHOUT RENEWING THE AGREEMENT  YOU DON'T TAKE IT AS A GROUND FOR EVICTION . EVEN RENT YOU MUST HAVE COLLECTED IT IN CASH . HOW MUCH ADVANCE YOU ARE HAVING WITH YOU THAT WAS PAID BY HIM . IF THERE IS ANY PROOF THAT YOU ARE HAVING HIS ADVANCE AMOUNT WHAT IS THE PROOF YOU ARE HAVING .BECAUSE ONLY ONE MONTH ADVANCE SHOULD BE TAKEN FROM HIM. YOU TAKE ONLY ONE GROUND FOR EVICTION . YOU SEND HIM A NOTICE DEMANDING PAYMENT OF RENT NOT FOR THE PERIOD THAT HAD PASSED BUT FOR THE RECENT PERIOD . YOU WAIT FOR 2 MONTHS . THEN YOU FILE A PETITION FOR EVICTION ON THE GROUND OF WILLFUL DEFAULT . DON'T ACCEPT THE RENT IF HE COMES AND PAYS THAT IN CASH OR SEND IT THROUGH SOMEBODY . BUT IF HE SENDS IT AS MONEY ORDER YOU RECEIVE IT BUT DON'T REFUSE IT . YOU CAN FILE 2 OR 3 RENT CONTROL PETITIONS ALSO BUT NOT SIMULTANEOUSLY . WHEN YOU FILE A EVICTION PETITION YOU ALSO FILE ANOTHER PETITION TO FIX A FAIR RENT FOR THE SHOP . THE RENT CONTROLLER HAD TO FIX A FAIR RENT ON THE BASIS OF THE PETITION . THIS IS ONLY TILL THE EVICTION PETITION IS DECIDED . IN WHICH STATE YOU ARE RESIDING AND WHERE IS THE SHOP LOCATED . HOW MANY SHOPS YOU HAVE LET OUT . IF YOU HAVE LET OUT MANY SHOPS , YOU CANNOT SINGLE OUT HIM . YOU PROVIDE SOME MORE DETAILS TO ENABLE THE FORUM MEMBERS TO GIVE THEIR OPINION . IF THERE IS A POSSIBILITY THAT THE CASE CAN BE TAKEN TO THE HIGH COURT BY FILING A CIVIL REVISION PETITION THEN IT WILL BE GOOD . LOWER LEVEL JUDICIARY WILL TAKE A SIDE WITH THE PERSON WHO PROVIDES ***** TO THE XXXX. I CANNOT PUT THAT IN WRITING IN THIS OPEN FORUM - JOSEPH WILFRED - 01/03/2014 AT 02.08 HRS 

T. Kalaiselvan, Advocate (Advocate)     02 March 2014

I agree with the good and valuable suggestions and opinions rendered by experts above, immediately change the lawyer and proceed through a new lawyer.

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank)     02 March 2014

DEAR AMMU MOHAN

                                    CAN YOU TELL US ON WHICH GROUNDS AND UNDER WHICH STATE ACT YOU HAVE FILED THE EVICTION PETITION . THERE IS ONE MORE WAY ALSO . I HOPE YOUR DAD MUST HAVE ENTERED INTO A LEASE AGREEMENT WITH THE PERSON OCCUPYING THE SHOP . NORMALLY LEASE FOR A PERIOD EXCEEDING 3 YEARS MUST BE REGISTERED . IN SUCH A CASE THE LEASE HAD EXPIRED AND NOT RENEWED BY YOUR DAD . DID YOUR DAD LEFT A " WILL " THAT THE PARTICULAR SHOP IS GIVEN TO YOU . IN SUCH A CASE YOU BEING THE LEGAL HEIR OF YOUR DAD , SEND HIM A NOTICE THAT THE LEASE ENTERED INTO BY YOUR DAD HAD EXPIRED AND YOU ARE NOT INTERESTED IN RENEWING THE LEASE AND GIVE HIM 60 DAYS TIME FOR VACATING THE SHOP AND INFORM HIM ALSO THAT ON EXPIRY OF 60 DAYS YOU WILL CANCEL THE LEASE DEED AND AFTER THAT HIS OCCUPYING THE SHOP IS ILLEGAL AND UNAUTHORIZED AND THEREBY HE IS DENYING YOUR " TITLE " AS A OWNER OF THE SHOP . YOU NEED NOT GIVE ANY EXPLANATION THAT YOU WANTED THE SHOP FOR CARRYING YOUR BUSINESS . DENYING THE TITLE OF THE OWNER IS A STRONG REASON FOR EVICTION . BUT THE REASON IN YOUR FIRST EVICTION PETITION AND THIS ONE SHOULD NOT CLASH WITH EACH OTHER . ON EXPIRY OF 60 DAYS YOU CANCEL THE LEASE DEED YOUR DAD HAD ENTERED ENCLOSING A LEGAL HEIR CERTIFICATE OR THE WILL WITH THE " DEED FOR CANCELLATION". THEN YOU CAN FILE ANOTHER EVICTION PETITION ON THE GROUND THAT HE IS DENYING YOUR TITLE TO THE PROPERTY . IF YOUR DAD HAD NOT LEFT A " WILL " ,THEN GET A LEGAL HEIR CERTIFICATE IN WHICH YOUR MOTHER, BROTHER AND SISTERS NAME WILL BE REFLECTED . IF OTHER LEGAL HEIRS ARE WILLING TO GIVE A PARTICULAR POWER OF ATTORNEY ( ONLY FOR THIS MATTER OF CONDUCTING THE CASE AND APPEAL ETC ) THEN YOU GET A REGISTERED POWER OF ATTORNEY AND PROCEED AS DETAILED ABOVE ON BEHALF OF OTHERS AS WELL AS YOURSELF . YOU NEED NOT WITHDRAW THE PREVIOUS                  " EVICTION PETITION " . BECAUSE THE GROUND YOU ARE NOW TAKING IS A DIFFERENT ONE . DO EVERYTHING AS PER LAW . BUT ENGAGE A GOOD SENIOR ADVOCATE FROM THE HIGH COURT AND HE WILL PREPARE EVERYTHING AND SOME OTHER ADVOCATE FROM LOWER COURT WILL FILE THE PETITION . TRY TO FILE THE PETITION IN SR NO IN THE SECTION 2 OR 3 DAYS EARLIER AND GIVE THE COPY OF THE PETITION TO THE ADVOCATE OF THE LOWER COURT . FOR THAT YOUR HIGH COURT ADVOCATE WILL SEND SOMEBODY TO FILE IN SR NUMBER . IF YOU FILE LIKE THIS YOUR PETITION WILL BE ON RECORD AND LOWER COURT ADVOCATE CANNOT DO ANYTHING BY NOT FILING YOUR PETITIONS . EVEN IF THE PRESIDING OFFICER OVERLOOKS THAT PETITION , THAT WILL BE ON RECORD , AND YOU CAN POINT OUT THAT IN YOUR APPEAL .  - JOSEPH WILFRED - 02/03/2014 AT 09.38 HRS.   

Biswanath Roy (Advocate)     02 March 2014

@Mr. Joseph Wilfred,

THE LEASE IN QUESTION WAS ENDED LONG BEFORE WHICH WAS NOT RENEWED THEREAFTER SO THE LESSEE'S PRESENT STATUS IS SIMPLE MONTHLY TENANT. HENCE, EVICTION OF SUCH TENANT WILL BE POSSIBLE ON REASONABLE REQUIREMENTS  GROUND.. 

                                                                                                                               B. N. ROY.

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank)     02 March 2014

DEAR MR. ROY

                            I FULLY AGREE WITH YOU . BUT SINCE YOU ARE APPEARING FOR VERY HIGH PROFILE CASES YOU MAY OR MAY NOT BE AWARE , HOW THE LOWEST JUDICIARY PRESIDING OFFICER ARE CONDUCTING SUCH CASES . THESE ARE DEALT AT THE MUNISIF COURT LEVEL FIRST . I HAVE NOT GONE TO THAT LEVEL . AS YOU KNOW MY FIRST APPROACH WAS AT THE HIGH COURT LEVEL . THE CASES ARE CONDUCTED LIKE KANGAROO COURTS . WHATEVER RECORDS YOU SUBMIT , WHY NOT EVEN BANK HAD TAKEN POSSESSION OF THE PROPERTY IN APRIL 2011 AND THIS WAS FILED BY A PETITION WITH THE POSSESSION ORDER BUT THAT PETITION WAS RETURNED WITH THE REMARK "COPY NOT SERVED TO THE OTHER PARTY ". WE FILED THAT PETITION IN SR NO . COUNTER STATEMENT WAS FILED IN JULY 2009 AND THE TRIAL DID NOT COMMENCE TILL JANUARY 2011 BECAUSE THE PREVIOUS PRESIDING OFFICER AND OUR COUNSEL WERE JUNIORS TO THE SAME SENIOR ADVOCATE WHO WAS ELEVATED AS A JUDGE OF THE HIGH COURT. ONCE THE COUNTER STATEMENT IS FILED THE COURT CANNOT MAKE THE DEFENDANT " EXPARTE ".IN ONE HEARING WHEN WE HAVE FILED AN ADJOURNMENT PETITION THE CROSS EXAMINATION , CHIEF EXAMINATION OF THE DEFENDANT , CROSS EXAMINATION OF THE DEFENDANT AND EVEN THE ARGUMENT OF THE DEFENDANT WAS CLOSED AND RESERVED FOR ORDERS . WE APPLIED FOR THE ORDER COPY OF THE CLOSURE ON THE SAME DAY . IT WAS RETURNED DURING THE END OF THE VACATION . WHEN WE FILED A PETITION TO SET ASIDE THE EXPARTE ORDER AND REOPEN THE CASE , THAT PETITION WAS RETURNED DURING CALLING . WHEN I INSISTED FOR FILING IT UNDER SR NO HE SIGNED AND GAVE IT . HE HAD WRITTEN IN THE PETITION THAT " ORDER ALREADY PASSED " . IN THAT COURT FOR FILING UNDER SR NO WE HAVE TO GET THE SIGNATURE OF THE PRESIDING OFFICER . THE ORDER WAS PASSED AFTER THE BANK TAKING POSSESSION OF THE PROPERTY . BEFORE WE COULD GET THE ORDER COPY OF THE EVICTION PETITION , EXECUTION PETITION WAS FILED . WE FILED THE COUNTER AS WELL AS THE PETITION UNDER SECTION 47 THAT THE DECREE CANNOT BE EXECUTED . 47 PETITION WAS KEPT FOR ONE MONTH AND RETURNED . BY THAT TIME THE PROPERTY ALONG WITH 6 OTHER PROPERTIES WAS BROUGHT FOR PUBLIC AUCTION . WE FILED THAT ORDER ALSO . EVERYTHING WAS OVERLOOKED AND THE EVICTION ORDER WAS PASSED . AGAIN WE FILED THE RETURNED 47 PETITION AND A STAY PETITION AS EMERGENT APPLICATION . IT DRAGGED ON FOR 15 MONTHS . FINALLY BOTH THE EMERGENT APPLICATIONS WERE DISMISSED . AGAIN WE FILED A STAY PETITION SINCE WE ARE APPROACHING THE HIGH COURT BY CIVIL REVISION PETITION . CRP WAS FILED UNDER SR NO BECAUSE THE PETITION WILL GO TO THE CONCERNED JUDGE BEFORE THE PETITION IS BEING NUMBERED IF THE GROUNDS ARE MORE AND LENGTHY. THE HONORABLE JUDGE AFTER READING THE CRP WANTED US TO FILE THE ORDER COPY OF THE EVICTION PETITION AND THE EXECUTION PETITION . WE FILED A MEMO MENTIONING EVERYTHING AND APPLIED FOR THE ORDER COPY . FOR MORE THAN ONE MONTH WE WAITED . ALTHOUGH THE COPY APPLICATIONS WERE NUMBERED , IT WAS NOT COMPLIED WITH . THEN WE FILED A PETITION TO DISPENSE WITH THE ORDER COPY MENTIONING THE REASONS . THIS TIME THE WHOLE SET WENT TO ANOTHER JUDGE . THEY HAVE FILED A CAVEAT AND WE COULD SERVE THE FIRST SET TO THEM . FOR THE 2ND SET THEY DODGED . WE FILED IT IN SR NO AND IN ONE OR TWO DAYS WE SERVED A COPY TO THEM AND GOT THE SIGNATURE IN OUR LETTER HEAD AND SUBMITTED IT IN THE SECTION . SENIOR ADVOCATE , HIS JUNIORS AND 2 COURT STAFF HAD TO CHASE THEM TO SERVE THE COPY . IN THE LOWER COURT THE NEXT DATE WAS 3RD APRIL 2014. WITH THIS MARCH 12TH , 24  MONTHS WILL BE OVER FROM THE DATE OF AUCTION . THE AMOUNT INVOLVED IS NOW AROUND 9 CRORES . NOBODY COULD BUY ANY OF THE PROPERTY . IF YOU WANT A GUEST HOUSE IN A HILL STATION , THEN YOU CAN BUY ONE FROM THAT . NO NEED TO BARGAIN WITH THEM . WE WILL QUOTE OUR OFFER PRICE TO THE GENERAL MANAGER .

    WHEN THE SITUATIONS ARE LIKE THIS YOU ARE WITH THE HOPE THAT AS PER LAW THE TENANT IS OCCUPYING THE SHOP UNAUTHORIZED MANNER . YOU ARE 100 % CORRECT . BUT HERE THE TENANT HAD PURCHASED EVEN THE PETITIONER'S ADVOCATE . THAT WAS THE REASON WHY I SUGGESTED EARLIER TO FIND OUT A WAY TO TAKE AWAY THE CASE FROM THIS COURT TO THE HIGH COURT BY A CIVIL REVISION PETITION . BUT FOR THAT WE MUST GET A GOOD REASON . IF INJUSTICE IS DONE TO THE PETITIONER , HE CAN EVEN APPROACH THE HIGH COURT BY MEANS OF A WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION . I AM HAVING A JUDGEMENT UNDER THAT SECTION ALSO. THIS MAY LOOK FUNNY FOR YOU. IN YOUR PLACE AND ALL IF THEY DO LIKE THIS THEN THEY MAY HAVE TO FACE XXXX - JOSEPH WILFRED - 02/03/2014 AT 18.20 HRS  .

vijay kumar (lawyer)     02 March 2014

you are filed by eviction suit

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank)     03 March 2014

DEAR MR . VIJAY KUMAR

                                                THE EVICTION SUIT WAS FILED BY THE PERSON WHO HAD MORTGAGED HIS PROPERTY ALONG WITH 5 OTHER PROPERTIES FOR A LOAN OF 4 CRORES IN 2006 . AS PER DICTIONARY MEANING ITSELF " MORTGAGE IS TRANSFERRING THE TITLE OF THE PROPERTY FOR REPAYMENT OF THE LOAN " . THEY ARE NOT SUPPOSED TO GIVE A REGISTERED POWER OF ATTORNEY TO ANYBODY . BUT THEY HAVE GIVEN A REGISTERED DEED TO HER SISTERS HUSBAND TO FILE THE CASE IN 2008 . THAT WAS REGISTERED IN THE SAME SUB REGISTRAR'S OFFICE WHERE THE BRANCH IS LOCATED . NOT ONLY THAT THE PROPERTY WILL BE AROUND 3000 SQUARE FEET BECAUSE THE STAIR CASE EVERYTHING IS INSIDE . IT WAS ACTUALLY CONSTRUCTED IN 2000 . BUT THEY HAVE SHOWN TO THE LOCAL AUTHORITIES AS IT WAS CONSTRUCTED IN 2006 . THE ASSESSMENT ORDER SHOWS ONLY 750 SQUARE FEET BUT THEY HAVE SHOWN TO THE BANK THE ENTIRE BUILDING . THE BANK ENGINEER SHOULD HAVE TAKEN ALL THE MEASUREMENTS AND VERIFIED THE ASSESSMENT ORDER AND THEN HE SHOULD HAVE GIVEN HIS OPINION . IT IS SHOWN AS UNDER OWNER OCCUPATION . ONCE UPON A TIME IT WILL LOOK AS A POSH HOUSE . BUT VERY POOR CONSTRUCTION . NOT ONLY THAT FROM 2002 THAT PROPERTY ADDRESS WAS GIVEN FOR THE TRADE MARK REGISTRY , MINISTRY OF INDUSTRY, GOVERNMENT OF INDIA , BY THE POWER OF ATTORNEY .THEY HAVE DIVERTED THE FUNDS TO SOME OTHER BUSINESS . COMPLETE BANK CORRESPONDENCE IS WITH ME . EVEN IF THEY HAVE DEPOSITED THAT 4 CRORES IN BANK DEPOSIT , THAT WOULD HAVE FETCHED 8 CRORES BY THE TIME OF AUCTION . AT THAT TIME THE DUE WAS ONLY 7 CRORES . NOT ONLY THIS ANOTHER PROPERTY THAT WAS UNDER MORTGAGE WAS SOLD IN 2008 AND BOUGHT WITHOUT MONEY IN 2009 . AFTER THE GOVERNMENT CHANGE CRIMINAL CASES HAD BEEN FILED ON THAT OWNER AND 2 OTHER HIGH PROFILE XXXX. WHEN THE BANK TOOK POSSESSION IN APRIL 2011 , WITHIN A MONTH WE QUOTED OUR OFFER PRICE TO THE GENERAL MANAGER . HE TOLD US THAT IF WE WANT TO PURCHASE IT AT THAT TIME , WE SHOULD BARGAIN WITH THE OWNER AND ASKED US TO WAIT TILL THE AUCTION . BY THE END OF 2011 THE HIGH COURT QUASHED ALL THE REGULARIZATION ORDERS PASSED BY THE PREVIOUS GOVERNMENT AND RETAINED ONLY THE ORDER ISSUED IN 1999. THE AUCTION WAS FIXED IN MARCH 2012 . IF ANYBODY PURCHASES IT THEY HAD NO OTHER GO BUT THEY SHOULD DEMOLISH IT . THE BANK CAN SELL THE ENTIRE BUILDING AND THEY CANNOT SELL ONLY 750 SQUARE FEET .BECAUSE ONLY ENTIRE BUILDING IS MORTGAGED TO THE BANK AND NOT 750 SQUARE FEET . I WILL ADVICE THEM NOT TO GET INTO TROUBLE IN THIS MATTER . ALL THOSE WHO SANCTIONED THE LOAN AND THOSE WERE THERE IN 2009 WHEN THE LOAN WAS CLASSIFIED AS A NON PERFORMING ASSET IN JUNE 2009 ARE UNDER SUSPENSION .SO BANK IS CAUGHT IN THE MIDDLE . THEY CANNOT SELL IT AND THEY ARE UNABLE TO GET THE LOAN WHICH IS NOW 9 CRORES .MANY BANK'S AND RECONSTRUCTION COMPANY AS PER SARFAESI ACT ARE ADVERTISING THE PROPERTIES THAT COME FOR SALE  AS " AS IS WHERE IS AND WHAT IS THERE IS " . THIS IS ENTIRELY WRONG AS PER SARFAESI ACT . THEY MUST SELL THE PROPERTY FREE FROM ENCUMBRANCE . NORMALLY IN A SALE DEED THERE WILL BE CLAUSE THAT IF THERE IS ANY ENCUMBRANCE ON THE PROPERTY , THE SELLER WILL INDEMNIFY THE BUYER AGAINST ALL LOSSES .WHEN 2/3 OF THE PROPERTY IS ILLEGAL CONSTRUCTION THEN THE BUYER CAN FILE CRIMINAL CASE AND HEAVY COMPENSATION ON THE BANK . IN THE EVICTION PETITION IT IS SHOWN AS THAT THE BUILDING WAS CONSTRUCTED IN 2000 . BUT IN THE ASSESSMENT ORDER AS WELL AS TO THE BANK, IT IS SHOWN AS THAT IT WAS CONSTRUCTED IN 2006 . BUT THE ASSISTANT GENERAL MANAGER AND THE DEPUTY GENERAL MANGER WHO WERE THERE WHEN THE PROPERTY WAS TAKEN POSSESSION HAD BEEN TRANSFERRED . ALL ARE NORTH INDIANS . BUT AFTER THAT ONE SOUTH INDIAN ASSISTANT GENERAL MANAGER TOOK CHARGE . HE ASKED ME TO SEND THE PAPERS I AM HAVING . I WAS KEEPING THAT FOR A CENTRAL BUREAU OF INVESTIGATION PROBE . NOW WE HAVE FILED EVERYTHING IN THE HIGH COURT AND SERVED A COPY TO THE CAVEATOR . LOT MORE ARE THERE . LET US WATCH AND SEE WHAT HAPPENS . THIS IS PUBLIC MONEY . JUST FOR 50,000/- OR 1 LAC THE BANK WILL GAG A ORDINARY PERSON . BUT FOR CRORES THEY WILL KEEP THEIR MOUTH SHUT . THE PRESENT REGIONAL MANAGER ASKED ME TO GIVE THE QUOTATION WHEN THE SALE CAME . I TOLD HIM , YOU HAVE NOT MENTIONED THE TOTAL CONSTRUCTION AREA OF THE BUILDING. IN SUCH A CASE HOW CAN I GIVE THE QUOTATION . AS PER SUPREME COURT GUIDELINES THE ENTIRE BUILDING SHOULD BE MEASURED ROOM BY ROOM AND THE PLAN MUST DRAWN BY THE BANK . I AM HAVING SEVERAL SUPREME COURT JUDGEMENT ON EVICTION OF TENANT ALSO . HOW I AM IN A POSITION TO GIVE ALL THESE PARTICULARS IS MY HOUSE IS NEXT TO THAT . NOW WE ARE GOING TO SEE WHAT THE HIGH COURT IS GOING TO DO IN THIS MATTER . WE HAVE FILED 218 PAGES TYPED SET OF DOCUMENTS . ONLY NOW I HAVE DISCLOSED THE MAXIMUM . HEREAFTER I CANNOT WRITE ON THIS MATTER WHEN THE CIVIL REVISION PETITION IS ADMITTED AND STAY GRANTED . WE ARE FOR THE DEFENDANT'S . TWO JUDGES OF THE HIGH COURT HAD GONE THROUGH THE ENTIRE PETITION THE CRP . THE CMP AND THE AFFIDAVIT FILED IN NOVEMBER 2013 . BEFORE THE DECEMBER VACATION WE FILED THE ADDITIONAL AFFIDAVIT , ADDITIONAL CRP , AND 3 CMP'S , 2 TO DISPENSE WITH THE ORDER COPY OF THE EVICTION . EXECUTION PETITION AND ONE EMERGENT APPLICATION ORDER PASSED AFTER WE FILED THE CRP IN SR NUMBER . I AM ENDING WITH THIS - JOSEPH WILFRED - 03/03/2014 AT 01.17 HRS  

Biswanath Roy (Advocate)     03 March 2014

I  BEG TO DIFFER WITH THE EXPERT Mr. JOSEPH WILFRED  ON THE POINT " MORTGAGE IS TRANSFERRING THE TITLE OF THE PROPERTY FOR REPAYMENT OF LOAN".  ACCOR4DING TO LEGAL PARLANCE MORTGAGE MEANS ' A LIEN AGAINST PROPERTY THAT IS GRANTED TO SECURE AN OBLIGATION ( SUCH AS A DEBT )   AND THAT IS EXTINGUISHED UPON PAYMENT OR PERFORMANCE ACCORDING TO STIPULATED TERMS.  BESIDES THE NATURE AND  CHARACTER OF THE DEED OF MORTGAGE  IS TO BE CONSIDERED BEFORE ITS APPLICATION IN A PARTICULAR CASE TO UNDERSTAND ITS IMPACT UPON THE FACTS.IN QUESTION. BECAUSE OF THE FACT THAT THE DEED OF MORTGAGE ARE OF VARIOUS KINDS SUCH AS ,- ADJUSTABLE-RATE-MORTGAGE, ALL INCLUSIVE-MORTGAGE, AMORTIZED-MORTGAGE,  BALLOON- PAYMENT MORTGAGE, BLANKET MORTGAGE,  BULK MORTGAGE,  CHATTEL MORTGAGE,  CLOSED END MORTGAGE, COLLATERAL MORTGAGE,  COMMON-LAW MORTGAGE  CONSOLIDATED MORTGAGE,  CONSTRUCTION MORTGAGE,  CONTINGENT-INTEREST MORTGAGE,  CONVENTIONAL MORTGAGE,  DIRECT-REDUCTION MORTGAGE,  DRY MORTGAGE,  EQUITABLE MORTGAGE, EXTENDED FIRST MORTGAGE,  WRAPAROUND MORTGAGE, FHA MORTGAGE, FIRST MORTGAGE,  FIXED-RATE MORTGAGE,  FLEXIBLE-RATE MORTGAGE  FLIP MORTGAGE , FUTURE ADVANCES MOTGAGE,  GENERAL MORTGAGE,  GRADUATED PAYMENT ADJUSTABLE RATE MORTGAGE,  GRADUATED PAYMENT MORTGAGE,  GROWING EQUITY MORTGAGE,  INDEMNITY MORTGAGE,  INTEREST-ONLY MORTGAGE,  JOINT MORTGAGE,  JUDICIAL MORTGAGE,  JUMBO MORTGAGE,  JUNIOR MORTGAGE,  LEASEHOLD MORTGAGE,  LEGAL MORTGAGE,  OPEN END MORTGAGE, PACKAGE MORTGAGE,  PARTICIPATION MORTGAGE,  PRICE-LEVEL-ADJUSTMENT MORTGAGE,  PUISNE MORTGAGE, PURCHASE MONEY MORTGAGE,  RENEGOTIABLE-RATE MORTGAGE,  REVERSE ANNUITY MORTGAGE,  ROLL OVER MORTGAGE,  SECOND MORTGAGE,  SELF-LIQUIDATING MORTGAGE,  SENIOR MORTGAGE,  SHARED -APPRECIATION MORTGAGE,  SHARED-EQUITY MORTGAGE,  SPECIAL MORTGAGE,  STANDING MORTGAGE,   STRAIGHT MORTGAGE, STRAIGHT TERM MORTGAGE,  SUB-MORTGAGE ,  TACIT TERM MORTGAGE,  TECHNICAL MORTGAGE,  VA MORTGAGE,  VARIABLE-RATE MORTGAGE,  WELSH MORTGAGE,  AND ZERO-RATE MORTGAGE.  THE COUNSEL WHO KNOWS THE DIFFERENCES OF RECITALS OF ALL THE AFORESAID MORTGAGES AND THEIR RESPECTIVE DIFFERENCES IN  CHARACTERS CAN EASILY CONTROL YOUR SAY BY HANDLING THE SAME IN APPROPRIATE MANNER BECAUSE I AM WELL AWARE OF WITH THE QUALITIES OF ADVOCACY OF THE BANKERS' LAWYERS.

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank)     04 March 2014

DEAR MR. ROY 

                           YOU ARE NOT ONLY A SENIOR COUNSEL AND HAD HANDLED HIGH PROFILE CASES . ALTHOUGH YOU ARE A SPECIALIST IN MANY LAWS , NOW FROM WHAT YOU HAVE POSTED IN THESE COLUMNS YOU ARE THE [ I AM NOT CLASSIFYING AS ONE OF THE ] SPECIALIST IN MORTGAGE AS FAR AS I AM CONCERNED . BUT MOST OF THE MORTGAGE YOU HAVE REFERRED TO MAY BE RELATED TO BUSINESS AND EDUCATION AND SO ON . BUT BANKS DON'T USE EVEN THE MORTGAGE YOU HAVE REFERRED TO IN EDUCATION. LONG BACK BANKS USED THE SIMPLE MORTGAGE BY DEPOSIT OF TITLE DEEDS . WHEN FRAUDS INCREASED , THEY STARTED USING REGISTERED MORTGAGE FROM THE YEAR 2006. THEY DON'T EVEN AGREE TO SECOND MORTGAGE EVEN IF THE VALUE OF THE PROPERTY IS VERY HIGH WHEN COMPARED TO THE AMOUNT OF LOAN AVAILED . ONLY WHEN A CONSORTIUM OF BANKS LEND HUGE AMOUNT TO A CORPORATE THEY AGREE TO A MORTGAGE IN WHICH THE SAME PROPERTIES ARE MORTGAGED TO VARIOUS BANKS . BUT IN SUCH CASES THEY ARE UNABLE TO RECOVER THE AMOUNT AND BECAUSE OF THAT THE NATIONALIZED BANKS NON RECOVERY FROM CORPORATE ALONE AS ON DATE IS FIVE LAKHS CRORES . THEY HAVE ATTACHED SOME OF THE PROPERTIES . BUT WHO WILL BUY THOSE PROPERTIES . THIS IS THE BIGGEST PROBLEM FOR THE GOVERNMENT NOW . IN YOUR STATE THE UNITED BANK OF INDIA WHICH IS HAVING ITS HEAD OFFICE MANIPULATED THE BALANCE SHEET AND SHOWED A NON PERFORMING ASSET OF 1200 PLUS CRORES . BUT WHEN THE RESERVE BANK OF INDIA AUDITED THE ACCOUNTS THE NON PERFORMING ASSETS JUMPED TO 8500 PLUS CRORES . SO THE CHAIRMAN OF THE BANK WHO TOOK CHARGE NOW , OPTED FOR VOLUNTARY RETIREMENT WITHIN 2 MONTHS OF TAKING CHARGE AND THE GOVERNMENT ACCEPTED THE RETIREMENT . BANKS WERE NATIONALIZED IN 1969 FOR THE MAIN PURPOSE OF LENDING TO THE UNDER PRIVILEGE PEOPLE . IF THE BANKS HAD LENT TO THE UNDER PRIVILEGE AT LEAST 25% OF THE NON PERFORMING ASSETS , THEY WOULD HAVE RECOVERED AT LEAST 15% OF THE AMOUNT . THE VERY PURPOSE OF NATIONALIZATION IS THUS DEFEATED -  JOSEPH WILFRED - 04/03/2014 AT 10.00 HRS 

Biswanath Roy (Advocate)     04 March 2014

@Learned Mr. Joseph Wilfred,

In my earlier post relating to the subject query I EXPRESSED MY DIFFERENCES IN RESPECT OF YOUR COMMENT 'MORTGAGE IS TRANSFERRING THE TITLE OF THE PROPERTY''..   IN MY VIEW IT IS A LIEN AGAINST PROPERTY THAT IS GRANTED TO SECURE AN OBLIGATION ( SUCH AS DEBT ).IT IS NOT TRANSFERRING THE TITLE OF THE PROPERTY.

SECONDLY I  NARRATED VARIOUS KINDS OF MORTGAGE JUST TO RAISE A QUESTION IF ANY BODY HAS KNOWLEDGE ABOUT SUCH VARIOUS MORTGAGES AND THEIR RESPECTIVE CHARACTERS AND HAS COMPETENCE TO INTERPRET ITS TERMS CAN THE LAWYERS OF THE BANKER WILL BE ABLE TO FACE COMBATING IN THE LITIGATION ARISING OUT FROM THE DEED OF MORTGAGE.?  SO  FAR I FACED IN SOME NOTABLE CASES OF THE BANKS I COULD NOT FIND ANY BODY AS YET.

Biswanath Roy (Advocate)     05 March 2014

LEARNED MR. WILFRED, 

 IN RESPONSE TO YOUR POST DATED 04/93/2014  I NEED FURTHER TO ADD TO MY RESPONSE THERETO THAT I FEEL SHY TO CLAIM MYSELF AS A SPECIALIST IN MORTGAGE  BECAUSE STILL I AM PICKING UP PEBBLES ON THE SEA SHORE OF LAW.  IN FACT I THOROUGHLY STUDIED THE SUBJECT INTERPRETATION OF LAW AND ITS APPROPRIATE APPLICATIONS, ENGLISH AND FEDERAL LAWS IN RESPECT OF INTERPRETATION OF DEEDS AND DOCUMENTS AND THEIR APPLICABILITY, PRINCIPLES LAID DOWN IN THE HALSBURY'S LAWS OF ENGLAND ( WHICH IS COMMONLY KNOWN AS HOLY GEETA OF LAW ). UNFORTUNATELY WHICH ARE BEING NEGLECTED BY MANY OF MY PROFESSIONAL FRIENDS NOW A DAYS.  I FEEL IT A GREAT BOON OF GOD THAT I COULD ABLE TO DETAIN HON'BLE MR. JUSTICE LATE JAGADISH SHARAN  VERMA TO HEAR MY ARGUMENT FOR LONG TWO AND HALF DAYS  IN HIS COURT.  IN MY OPPOSITION WAS SENIOR ADVOCATE OF ALLAHABAD HIGH COURT BAR MR. R. S. DIWEDI WHO FOUGHT AGAINST LATE SMT. INDIRA GANDHI OUR LATE PRIME MINISTER BEFORE THE HON'BLE MR. JUSTICE SINHA ( AS HE WAS THE THEN ) BY VIRTUE OF MY SUCH ACQUIRED KNOWLEDGE IN INTERPRETING STATUTE I COULD ABLE TO DETAIN HON;BLE MR. JUSTICE LATE SABYASACHI MUKHERJEE FOR ONE AND HALF DAYS TO HEAR MY ARGUMENT WHETHER THE TERM AND/OR IS CONJUNCTIVE OR DISJUNCTIVE IN THE CASE OF KEDAR NATH JUTE MILLS. SO NATURALLY I HOPE THAT YOU WILL ADMIT THAT THE KNOWLEDGE IS POWER.

Joseph Wilfred (Voluntarily Retired from Indian Overseas Bank)     06 March 2014

DEAR MR. ROY 

                           IN REPLY TO YOUR POSTING THE LAST BUT ONE , I POSTED ABOUT A MATTER AND WITH THAT I ADDED SOME MORE AND I HOPE BECAUSE OF THAT IT HAD NOT COME IN THESE COLUMNS . I WILL FIND OUT WHETHER I HAVE RECEIVED THE REPLY THAT I HAVE POSTED AND IF I HAVE THAT I WILL SEND IT EITHER AS A PRIVATE MESSAGE OR TO YOUR MAIL I.D. FROM THAT I WILL REFER ONLY ONE MATTER THAT IS NOW A DAYS BANKS ARE USING " REVERSE MORTGAGE " FOR LOANS GRANTED TO ELDERLY PERSONS BASED ON THEIR PROPERTY BECAUSE NOW A DAYS MOST OF THE GROWN UP CHILDREN DON'T BOTHER TO TAKE CARE OF THEIR PARENTS . IN SUCH TYPE OF LOANS 60% OF THE VALUE OF THE PROPERTY WILL BE THE UPPER LIMIT . BUT IT WILL NOT BE DISBURSED IN ONE LOT BECAUSE EVEN FOR THAT THEIR CHILDREN WILL DEMAND THEIR SHARE . SO EVERY MONTH THE AMOUNT WILL BE RELEASED SO THAT THEY CAN HAVE A PEACEFUL AS WELL AS A DECENT LIVING . EVEN FOR MEDICAL EXPENSES THE ACTUAL AMOUNT WILL BE RELEASED . WHEN THE HUSBAND / WIFE IS NO MORE IT WILL BE RELEASED TO THE  WIFE / HUSBAND . FINALLY WHEN BOTH ARE NO MORE , THE LEGAL HEIRS WILL HAVE TO PAY THE AMOUNT AND RELEASE THE PROPERTY AND DIVIDE AMONG THEMSELVES . THE INTEREST IS ALSO LOWER THAN THE ACTUAL INTEREST FOR THE HOUSING LOANS . 

     REGARDING THE OTHER MATTER THAT YOU HAD BEEN GIVEN A LOT OF TIME TO ARGUE THE CASE , THAT IS THE CORRECT PROCEDURE . WHEN YOU HAVE TO POINT OUT A LOT OF DOCUMENTS AND JUDGEMENT TO ARRIVE AT A CORRECT CONCLUSION ONLY IF THEY GIVE YOU TIME , THEN ONLY THE ACTUAL TRUTH WILL COME OUT AND THE OTHER SIDE CANNOT COUNTER IT . IF TIME IS NOT GRANTED , THEN MARKING OF DOCUMENTS AND CROSS EXAMINATION AT THE LOWER COURT WILL NOT SERVE ANY PURPOSE . IN SUCH A CASE I AM VERY SURE THAT YOU WILL BE GRANTED MORE TIME , BECAUSE EACH AND EVERY DOCUMENT AND THE CROSS EXAMINATION IN THE LOWER COURT IS IMPORTANT . OTHERWISE THE LOWER COURT PRESIDING OFFICER WOULD NOT HAVE ALLOWED TO MARK THOSE DOCUMENTS . I HAVE NOTED IN SOME COURTS IN WHICH THE PRESIDING OFFICERS EQUAL TO THE RANK OF THE DISTRICT JUDGES , TELL THE OTHER ADVOCATE IN THE OPEN COURT NOT TO MARK CERTAIN DOCUMENTS AS IT WILL GO AGAINST THEM . WE CANNOT DO ANYTHING IF THEY DO LIKE THAT . THIS ACTUALLY MEANS THAT , THEY HAVE ALREADY MADE UP THEIR MIND WHAT THE JUDGEMENT SHOULD BE . THE HONORABLE SUPREME COURT OF INDIA HAD SET ASIDE A JUDGEMENT OF THE LOWER COURT ON THE BASIS THAT THE JUDGEMENT IS PRECONCEIVED .- JOSEPH WILFRED - 06/03/2014 AT 10.00 HRS


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